Earlier this week, the D.C. Circuit Court of Appeals held that the “Wehrum Memo,” which reversed EPA’s longstanding policy of “once in, always in” regarding MACT jurisdiction, was not final agency action subject to judicial review. Like Judge Rogers, I dissent.

The majority makes much of its effort to clarify this “byzantine” area of the law. My take is that, to the extent the court has succeeded in that effort, it is only by reducing the law to this simple rule: If the guidance document appears to impose obligations on the regulated community, then it is a regulation and can be challenged. If it lessens obligations on the regulated community, then it is guidance and may not be challenged.

This may benefit my clients, but seems an odd view of the law.

The majority and dissent agreed that the Wehrum Memo was the “consummation” of EPA’s decision making process. The question thus became whether it constituted an agency action “by which rights or obligations have been determined, or from which legal consequences will flow.” The Court concluded that the Wehrum Memo does not have such an effect, because parties currently subject to MACT can only take advantage of EPA’s new policy by seeking to amend their Title V permit, and states can ignore the Wehrum Memo and permits can, in any case, always be appealed.

However, as Judge Rogers’s dissent noted, the Court pretty much had to ignore the decision Appalachian Power v. EPA, in which the Court stated that “’rights’ may not be created, but ‘obligations’ certain are…. The entire Guidance … reads like a ukase.”

When one reads Appalachian Power together with Sackett v. EPA, one conclusion becomes clear – courts are not going to allow agencies to promulgate guidance that allows them to exercise coercion against regulated entities who face significant costs and risks if they ignore the enforcement implications of agency “guidance.”

On the other hand, the courts seem to have concluded, if the guidance benefits the regulated community, then there is no harm to making those who want to challenge the guidance wait until some formal appellate opportunity becomes ripe at some point in the future. However, as Judge Rogers pointed out, “legal consequences flow” from the Wehrum Memo as soon as major sources take enforceable limits to get below MACT thresholds.

I’m very skeptical that the decision contributes towards “clarifying this somewhat gnarled field of jurisprudence,” unless the Court really does intend the law to be that regulated entities can challenge guidance, but others cannot.

Now, DOJ has taken the prohibition a step further. It will no longer rely on guidance issued by other agencies when taking civil enforcement action. The memorandum has made the regulated community and the NGO community sit up and take notice.

I am sympathetic to the concerns raised in the Sessions memo. I hate circumvention of notice and comment rulemaking by guidance. However, as I noted when the memo was released, the problem with guidance documents is not how they are drafted; it’s how they are implemented.

For example, the new memorandum states that:

The Department may continue to use agency guidance documents for proper purposes in such cases. For instance, some guidance documents simply explain or paraphrase legal mandates from existing statutes or regulations.

Well, but in the first instance, who decides whether a guidance document “simply explains or paraphrases legal mandates” or whether it instead “purports to create rights or obligations binding on persons or entities outside the Executive Branch”?

The agency does, of course – perhaps aided by its counsel, DOJ.

This will particularly be an issue where guidance has been in place for many years and has been relied on by both an agency and the regulated community as accurately describing what the law actually is. Take, for example, the New Source Review Workshop Manual. The Manual is not only not a regulation; it’s been in draft for 28 years. Nonetheless, it’s been relied on as the bible for practitioners since then. It might be exempt from this policy, which makes clear that it does not apply to internal training materials. However, when internal training materials are used to say what the law is, that sounds like regulation masquerading as guidance to me.

Here’s another issue. What are the implications of this guidance memorandum for cooperative federalism? In a delegated program, what happens if states continue to rely on guidance documents in enforcing federal obligations? Are we going to have one interpretation under federal law and another interpretation under state law? Can you say “forum shopping”?!

Finally, I cannot resist pointing out the irony inherent in the AG issuing two separate guidance documents on the proper – and improper – use of guidance documents.

Back in the early days of the College, then-incoming President Brad Martin had asked interested Members to work with Lexis Nexis in developing some treatises on a range of topics. Indeed, years later you can go to this link to see how you too can join the very few who purchase some of these treatises, see a photo of Brad, and the list of ACOEL authors. New Council of Environmental Quality guidance on treatment of climate change in federal environmental impact analysis suggests these treatises may have some impact.

I agreed to and with the aid of one of Brad’s former associates, in 2010 authored a treatise entitled “Treatment of Greenhouse Gases Under the National Environmental Policy Act” . We addressed the then-recently released (February 2010) White House Council on Environmental Quality’s Draft Guidance on consideration of climate change and greenhouse gases in NEPA environmental reviews. In the conclusion I said:

With the prospects for comprehensive, economy-wide regulations on greenhouse gas emissions uncertain, climate change will continue to be addressed under existing environmental laws, including NEPA and its state-level counterparts. It has become increasingly clear that project proponents and lead agencies will be hard-pressed to avoid evaluating greenhouse gas emissions and other climate-related impacts attributable to public and private development projects. But disparate treatment across federal and state jurisdictions has left agencies and developers struggling with when and how to evaluate such impacts in their environmental review documents. Despite a growing body of regulations, case law, and guidance, substantial uncertainty remains regarding the scope, type, and depth of analyses required of climate change effects under NEPA and state analogues.

Little did I know or even suspect that the “disparate treatment” would continue unabated for another 5-plus years. The Draft Guidance was intended to be finalized in 2011, but the final version would not be released until the waning days of the Obama Administration On August 2, 2016, the CEQ has now issued its 34-page Final Guidance, which expressly requires all Federal agencies to include climate change in their analysis of environmental impacts.

In sum, the Final Guidance (at 4-6):

“[r]ecommends that agencies quantify a proposed agency action’s projected direct and indirect GHG emissions, taking into account available data and GHG quantification tools that are suitable for the proposed agency action; Recommends that agencies use projected GHG emissions (to include, where applicable, carbon sequestration implications associated with the proposed agency action) as a proxy for assessing potential climate change effects when preparing a NEPA analysis for a proposed agency action; Recommends that where agencies do not quantify a proposed agency action’s projected GHG emissions because tools, methodologies, or data inputs are not reasonably available to support calculations for a quantitative analysis, agencies include a qualitative analysis in the NEPA document and explain the basis for determining that quantification is not reasonably available; Discusses methods to appropriately analyze reasonably foreseeable direct, indirect, and cumulative GHG emissions and climate effects; Guides the consideration of reasonable alternatives and recommends agencies consider the short- and long-term effects and benefits in the alternatives and mitigation analysis; Advises agencies to use available information when assessing the potential future state of the affected environment in a NEPA analysis, instead of undertaking new research that is, and provides examples of existing sources of scientific information; Counsels agencies to use the information developed during the NEPA review to consider alternatives that would make the actions and affected communities more resilient to the effects of a changing climate; …and Counsels agencies that the “rule of reason” inherent in NEPA and the CEQ Regulations allows agencies to determine, based on their expertise and experience, how to consider an environmental effect and prepare an analysis based on the available information.”

How many of our LexisNexis recommendations were reflected in the Final Guidance I cannot yet say. But one moral of this tale is that College members may be able to direct a spotlight on needed changes in environmental regulating, even when those wheels of justice grind exceeding slow.

Enacted in May 2009, New Jersey’s “Site Remediation Reform Act”, N.J.S.A. 58:10C-1, et seq. (“SRRA” or “Act”) was heralded by the State’s Department of Environmental Protection (“NJDEP”) as a “new world order” for the State’s site remediation regulation. Four years later, its imposition remains a “work in progress”.

Belatedly following Massachusetts’ lead, the Act largely privatized site remediation by placing most decisions, including the ultimate provision of final remediation approval, in the hands of state-licensed professionals, called “Licensed Site Remediation Professionals” (“LSRPs”). It replaced NJDEP’s former “command and control” approval process, which tended toward extreme micro-management of each case. Instead, LSRPs are supposed to use their professional judgment in effecting remediation.

Interestingly, much of the impetus for the SRRA came chiefly from the Government, compelled by its enormous backlog of unresolved cases: it was not unusual for remedial reports to languish on NJDEP desks, awaiting action, for years. Moreover, NJDEP had little or no knowledge of many sites on its “known contaminated site list” which numbered anywhere from 10,000 to 15,000 (the fact that that number was unclear was itself troublesome). Indeed, one of the precipitating causes of the Act was a vapor intrusion case in which it was belatedly discovered, in 2006, that a child day care center had been built, and was operating, on a site which formerly housed a thermometer factory. This site should have been (but was not) cleaned up under the State’s ISRA law when the factory closed in 1994. The site had been classified as one of “low” concern, so it was not inspected by NJDEP until twelve years after such closure. The discovery of these circumstances caused public consternation, followed by litigation and, ultimately, legislation.

Although the environmental consultant community enthusiastically welcomed the new law (almost immediately dubbed the “environmental consultant right to work act”), individual LSRPs continue to have difficulty weaning themselves away from the “security blanket” of prior department approval of their actions. These fears are understandably heightened by the statutorily enjoined random audit of at least ten percent of LSRPs annually by the LSRP Licensing Board and the Department’s separate ability to audit final remediation approvals, (called “Response Action Outcomes”, or “RAOs”), for up to three years after issuance.

Partly in response to the LSRPs’ expressed need for some certainty, NJDEP has been steadily adding to the scope and detail of various technical guidance documents, the most recent one of which is its “Vapor Intrusion Technical Guidance (Version 3.1)" issued in March of this year. At 184 pages, with appendices, this guidance (“VI Guidance”) is nearly twice as long as the next-largest NJDEP “guidance document” and far longer than similar VI guidance issued by authorities in neighboring states. Indeed, its length is nearly that of OSWER’s External “Review Draft” “Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air”, whose issuance it preceded by about a month. Predictably, the two documents do not exactly mesh seamlessly.

The prescriptive nature of the VI Guidance is equal to its heft and seemingly contrary to the Act’s proclaimed conferring of discretionary judgment upon LSRPs. More troublesome is the fact that the various detailed dictates to LSRPs in the VI Guidance have been translated into a welter of forms that must be filed by the LSRP at various points in the VI remedial process. These new forms –which are apt to change with some frequency – are all “machine readable” and, in light of the draw-down of experienced NJDEP personnel caused by government cutbacks and natural attrition, are increasingly reviewed by machines, rather than experienced personnel, at least in the first instance. This seems likely to produce an exaltation of form over substance that does little to foster actual remediation. Moreover, departures from the VI Guidance must be supported by the LSRP’s explanation of rationale under a pre-SRRA regulation entitled “Variance from Technical Requirements”. Few such “variances” were ever permitted under this regulation in the past. The fact that such “departures” may be substantively reviewed by NJDEP only after the final RAO is issued and, if denied, would result in the RAO’s invalidation, creates an added “chilling effect” on an LSRP’s consideration of any such deviation, however warranted. And, while NJDEP personnel continue to be available to LSRPs for consultation and advice, it is unclear what effect, if any, reliance on such advice would have in any subsequent audit of an RAO.

It may be that the VI Guidance is sui generis and that its overly doctrinaire approach will not be followed by NJDEP in other areas of remediation. If not, the “new world order” of the SRRA may morph into something that looks very much like NJDEP’s “ancien regime”. Or maybe I just have a case of the vapors.

American College of Environmental Lawyers, The ACOEL, is a professionalassociation of lawyers distinguished by experience and high standards in the practice of environmental law, ethics, and the development of environmental law.